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ARMANDO A. PANDOLA, JR.

Identification No.: 27608

400 Sterling Commerce Center ATTORNEY FOR PLAINTIFF

1819 JFK Boulevard

Philadelphia, Pa 19103

(215) 568-5010

_________________________________________________________________

JEROLD WASHINGTON UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

PLAINTIFF’S REPLY TO DEFENDANT’S MOTION FOR LEAVE

TO FILE A REPLY MEMORANDUM IN FURTHER SUPPORT OF ITS

MOTION FOR SUMMARY JUDGMENT

Plaintiff requests that this Honorable Court deny the Defendant’s Motion

to file a Reply Memorandum and answers Defendant’s Motion as follows:

1. Admitted.

2. Denied. Plaintiff’s answer to Defendant’s Motion for Summary 

Judgment specifically addresses each and every argument made by the

defendant in its Motion for Summary Judgment. Plaintiff’s Motion refers to

the factual record to support each of his claims and there are specific

references not only to the depositions that were taken but to the documents

that were produced by the defendants.

3. Denied. Defendant’s reply brief either expands on arguments that have

already been made or that could have been made by the defendant or present

new claims not mentioned in their original Motion for Summary Judgment.

The first part of its reply brief is devoted to restating its argument that it took

Case 2:02-cv-04451-CG Document 26 Filed 12/04/2003 Page 1 of 7
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“prompt and effective” action to remedy the discrimination alleged by the

plaintiff. This was an argument made in their original Motion for Summary

Judgment and is merely restated by the defendant. All of the facts alleged by

the defendant in making this argument were available to it when it filed its

original Motion for Summary Judgment, and there are no new facts which it

has alleged that have come to its attention since that original Motion was

filed. For example, defendant claims that there was no harassment by a

supervisor, then goes on to mis-characterize plaintiff’s argument as stating

that the supervisor in question, Mr. Rhodes, was aware of the racial incidents

involving Mr. Washington and did nothing about them. In fact, plaintiff’s

claim is based on Mr. Rhodes' testimony in which he specifically stated that

he did nothing to enforce the policy of the defendant that supervisors must

report allegations of racial harassment. Defendant was aware of Mr. Rhodes

testimony at the time that they wrote their initial Motion for Summary

Judgment and never referred to that testimony. Instead, they chose to ignore

it, hoping that the plaintiff would not raise the obvious fact that Mr. Rhodes

has admitted that he does nothing to enforce the defendant’s policy that its

supervisors have the duty to enforce its anti-racial discrimination policies.

Plaintiff used this testimony by Mr. Rhodes to prove that he has a viable

claim and, now, defendant wants to file a reply brief to explain away

testimony that it should have addressed in its original Motion. Defendant

should have explained how the it could have an effective anti-discrimination

Case 2:02-cv-04451-CG Document 26 Filed 12/04/2003 Page 2 of 7
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policy in spite of the fact that its supervisors do nothing to enforce that

policy.

Additionally, defendant wishes to rewrite history by claiming that this

same supervisor, Mr. Rhodes, learned about the plaintiff’s allegations of

racial harassment only “after plaintiff complained” about them. It is obvious

that if plaintiff is telling the truth then Mr. Rhodes knew about the allegations

of racial harassment before plaintiff complained about them because the

same supervisor, Mr. Rhodes, admitted that he saw the noose on the bus and

told the other employees to take down the noose because he believed that it

was an indication that the others intended to harm Mr. Washington. Given

his testimony, it is obvious that Mr. Rhodes was aware of the racial

harassment that was occurring, yet he never reported it1

. 

Defendant’s reply brief does nothing but address the evidence that

plaintiff presented in his answer to Defendant’s Motion for Summary

Judgment, evidence that the defendant was well aware of when it filed its

original Motion for Summary Judgment. The Court should not allow the

defendant to file an additional Motion for Summary Judgment, addressing the

 

1 Defendant claims that plaintiff was not working with Rhodes when he claims that he saw

the noose on the bus in October, 2000. In fact, there is a discrepancy in Rhodes testimony

because he claims that the noose was a "Halloween prank" yet cannot explain why the

nooses were still there in December, long after Halloween. See Rhodes, pp. 40-54.

Rhodes confirms that he "stayed out of" the incident once it happened - in direct

contradiction to defendant's policy. There is no doubt that Rhodes is not being honest

when he claims that the "noose" was a mere Halloween prank, and that plaintiff some how

found out about in December and decided to use this fact to "frame" Hogan. Once again,

this is proof of the lengths that this supervisor and defendant's employees will go to deny

the racial harassment that takes place at Lancaster Division. They all lied to support

Hogan, and defendant did nothing about it.

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evidence that should have been addressed in its original Motion for Summary

Judgment.

In fact, defendant’s reply brief is twenty pages long while its original brief

was only twenty-six pages long. In its original brief, it failed to address any

of the evidence that showed a potential liability on the part of the defendant;

instead, it chose to address only evidence of a very selective nature, that is,

the little evidence that existed that defendant actually has an antidiscrimination policy and what little it does to enforce that policy. By failing

to address any evidence that proved plaintiff's case in its original Motion for

Summary Judgment, defendant gave up that right. It should not be allowed

to now file an additional Motion for Summary Judgment where it takes into

consideration all of the evidence, as it should have done when it filed its

original Motion for Summary Judgment2.

While plaintiff requests the opportunity to reply to defendant’s reply brief

if the Court should allow defendant to file it, plaintiff does wish to advise the

Court that that reply brief adds nothing to the factual record that is already

before the Court except that defendant does state that this is a case in which

it “did everything right.” While it cites several cases not cited in its original

motion, none of those cases were decided after that Motion was filed. 

Finally, the defendant's Reply brief does show that there is a great factual

dispute in this case. The defendant's supervisors and employees who were

working with the plaintiff when this terrible incident occurred, all deny that it

 

2 Attached is a copy of the deposition of Andrew McCallum who was deposed before the

defendant's Motion was filed; the transcript has only now become available. 

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happened. All of them support the employee who resigned rather that

answer the charges brought against him. Interestingly, Amtrak, itself, has

never admitted that the harassment occurred, but does want to take credit for

having brought charges against Hogan, and forcing his resignation. This

Janus-like stance is far less admirable than the champion of "diversity"

image that defendant wishes to portray.

WHEREFORE, plaintiff respectfully requests that this Honorable Court

deny Defendant’s Motion to File a Reply Brief.

Respectfully submitted by,

ARMANDO A. PANDOLA, JR., ESQUIRE

Attorney for Plaintiff

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V E R I F I C A T I O N

ARMANDO A. PANDOLA, JR., ESQUIRE, states that he is the attorney for

Plaintiff herein, and that the facts set forth in the foregoing pleading are true

and correct to the best of his knowledge, information and belief, and that this

statement is made subject to the penalties of relating to unsworn falsification

to authorities.

Date:______________________ _________________________

ARMANDO A.PANDOLA, JR.

Case 2:02-cv-04451-CG Document 26 Filed 12/04/2003 Page 6 of 7
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ARMANDO A. PANDOLA, JR.

Identification No.: 27608

400 Sterling Commerce Center ATTORNEY FOR PLAINTIFF

1819 JFK Boulevard

Philadelphia, Pa 19103

(215) 568-5010

_________________________________________________________________

JEROLD WASHINGTON UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

Vs. PENNSYLVANIA

 

NATIONAL RAILROAD PASSENGER CIVIL ACTION NO. 02-CV-4451

CORPORATION D/B/A AMTRAK

CERTIFICATION OF SERVICE

Armando A. Pandola, Jr., Esquire, attorney for plaintiff hereby certifies

that the attorney of record in the attached action has been served with a true

and correct copy of Plaintiff’s Reply to Defendant’s Motion For Leave to File a

Reply Memorandum in Further Support of Its Motion for Summary Judgment

by first class mail on December 2, 2003 to the following:

Paul Evans, Esquire

Morgan Lewis & Bockius, LLP

1701 Market Street

Philadelphia, PA 19103-2921

________________________

ARMANDO A. PANDOLA, JR.

Case 2:02-cv-04451-CG Document 26 Filed 12/04/2003 Page 7 of 7